In my first post after the Hamas terrorist attack of Oct. 7, I wrote that I didn’t feel competent to address the situation from a doctrinal point of view, because I don’t have any particular expertise in the law of armed conflict, international humanitarian law, etc. But I did give a view from the outside about what international law experts have to say about the situation in Israel and Palestine:
As I said, I am not an expert on the law of apartheid, the law of armed conflict, the law of colonialism, the law of indigenous peoples, etc. So I can’t give authoritative views about what the law in those areas actually is. But what I can say, from what I hope is the perspective of someone who is committed to peace and justice between Israel and the Palestinians and to a Palestinian state alongside the Jewish state, “if this is what the law is, then I think there is something wrong with the law.” So I will end where I started, with a plea: I hope those who are experts will at least ask themselves whether expert opinion has gotten so far out of whack with ordinary right and wrong that it’s a good time to revisit the expert consensus.
The starkest disconnect that I have found between ordinary right and wrong and even ordinary ideas about the permissibility of the use of force on the one hand and expert views on the other is Professor Mary Ellen O’Connell’s post at EJIL: Talk! titled “The Lessons of 9/11 for October 7.” It is a short post; you can read it in a few minutes. Here is what I think it says.
First, it was impermissible for Israel to respond to the October 7 terrorist attack with armed force. That it because the only possible basis for the use of armed force in the circumstances is the right of self-defense in Article 51 of the UN Charter, and Article 51 cannot apply. Why not? Because the attack that triggers the right to self-defense must come from a state, and Gaza is not a state. Professor O’Connell agrees that Hamas has “some governance authority in Gaza,” but she also points out the role that the Israeli government played in “raising the status of Hamas” in order to weaken the Palestinian Authority. She also notes that Article 51 “does not apply to territories under the control of a state that is attempting to justify the use of force by invoking it” and argues that Israel controls Gaza because it has “never relinquished control of Gaza’s borders.”
Second, even if the use of force is permissible, force may only be used as a last resort, and the use of force was not necessary in this case. Why not? First, because while “[r]ockets continue to hit Israel from Gaza; a full-scale invasion may stop them in the short run but not over time.” Also, she writes, there is an alternative that is “all but guaranteed to succeed in ending Palestinian violence against Israel,” namely, Israeli withdrawal from the West Bank, which Israel captured in the Six-Day War and still occupies. (I leave the Golan Heights aside, and Professor O’Connell doesn’t mention it).
I should note that although Professor O’Connell doesn’t say anything about the legality of the terrorist attack itself, she did condemn it in a discussion at the Kroc Institute for International Peace Studies.
I don’t know how widely Professor O’Connell’s views are shared in the community of experts in the relevant areas of law. But let’s assume that she is right about what the law is. Let’s start with the right to use force in self-defense. If a group of terrorists in Canada slipped into New England, killed a thousand people, and took hundreds of hostages back to Canada, the first call the American government would make would be to the Canadian government, asking for its help. But as Professor O’Connell acknowledges (sort of), Hamas is the government in Gaza. Is there really any human being who is not a highly credentialed professor of international law and who thinks that the ways in which Gaza or even Palestine does or does not satisfy the criteria of statehood should decide whether Israel can use force to try to rescue the hostages or to prevent Hamas from trying to do again what it had just done so spectacularly? Can Israel’s control of Gaza’s borders (it would be more correct to say Israel and Egypt’s control of Gaza’s borders) really mean that the use of force to rescue the hostages or to prevent another attack is illegal, when the whole reason for the border controls was to prevent the kind of infiltration into Israel with weapons brought to Gaza from abroad that the blockade and border controls were meant to prevent?
Let’s take the issue of necessity. Does any actual human being who is not an expert in international law think that the use of force to stop armed incursions by terrorists or to prevent indiscriminate rocket attacks is unnecessary unless you can stop the attacks and the rockets forever?
The issue of “land for peace” is more complicated. There’s no question that a trade of the West Bank for a lasting peace, probably with some agreed land swaps and an agreement on the status of holy sites in Jerusalem, is the basis of any two-state solution. That’s certainly what I want to see happen. That’s what the Palestinians were offered and refused, but perhaps might be willing to accept sometime in the future. But the Palestinian Authority is one thing, and Hamas is another. I find it difficult to comprehend Prof. O’Connell’s naïveté on Hamas. Does she really think that if Israel withdrew to the 1967 borders, Hamas would make peace with Israel? That’s not what Hamas says. That’s not what its international patron, the government of Iran, says. That’s not what I heard walking through Copley Square in Boston the other day, when a large demonstration was chanting, “We don’t want no Jew state, we want 1948!”1 It’s a dangerous kind of utopianism that has gotten people killed and will get more people killed. (To be clear, I am not blaming Professor O’Connell for anyone’s death! I am blaming the world’s blindness about Hamas, and also, I hasten to add, the Israeli government’s willingness to “work with” Hamas because it was useful to treat it as a foil to the Palestinian Authority in the West Bank).
Does any human being who is not an expert on international law really think that the path to peace is to give everything Israel would be expected to give in a peace deal, with a genocidal terrorist group still in control next door?
Maybe the law really does say to Israel, “we’re very sorry, but there is nothing you can do to stop the genocidal maniacs next door from raining down rockets on your cities and from carrying out a pogrom of historic magnitude, except perhaps surrendering the one thing you have to trade for peace in the hope that the genocidal maniacs aren’t really as bad as they have proved themselves to be over decades.” I hope not! But if it does, then it is hard to understand why the law in this area is worthy of our respect. My impression is that public international lawyers are very comfortable making creative arguments about why the law should depart from traditional understandings in one way or another. Why are those professors who think that an orthodox reading of international law does not allow the use of force not deploying all their creativity now to explain why the law does not require such an absurd consequence? Why is anyone okay with telling Israel there is nothing it can do to protect its citizens that is not a violation of international law?
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